Australian Immigration Daily News

Today’s article is essential  reading for anyone who acts, either as a migration agent or a lawyer, for a person who has had her/his visa cancelled on character grounds.

As we have seen, the Minister has been very actively exercising the “personal” powers vested in him under the Migration Act to cancel visas on character grounds, or to refuse to revoke the cancellation of visas on character grounds.

And as we have also seen, it is extremely difficult to challenge a cancellation decision made on character grounds in Federal Court.  There is no “merits review” of cancellation decisions made personally by the Minister – merits review is only available when a cancellation decision is made by a delegate of the Minister, and is only available in the AAT.

When the cancellation decision is made personally by the Minister, the only way that such a decision can be successfully contested is by showing that the Minister’s decision was affected by jurisdictional error – normally confined to cases where the decision-maker has failed to consider a relevant matter, or has considered a matter that is irrelevant.

A decision that was handed down last December by Justice Collier of the Federal Court in Queensland, Tesic v Minister for Immigration and Border Protection (2016) FCA 1465 (7 December 2016) points the way towards a potentially effective new strategy for fighting character cancellations.

Here’s the starting point:

Readers may be aware that is somewhat commonplace for the Department to describe being in Australia under the legal authority of a “visa” as being a privilege rather than a legal right.

However, the use of the term “privilege”  to describe the legal entitlements of a visa holder has been criticized as a mischaracterization.

In the Full Court case of Minister for Immigration and Border Protection v Stretton, Justice Griffiths made the following observations:

“Under Australian law, having the status of a visa holder is not a privilege. Visa holders hold statutory and non-statutory rights which are inconsistent with the notion of their status as being described simply as a “privilege”.

Here’s the next step.

Readers will also be familiar with the fact that Direction No. 65, relating to visa cancellation on character grounds, includes a very frequently recited “principle” , at 6.3(3), to the effect that:

“A non-citizen who has committed a serious crime….should generally expect to forfeit the privilege of staying in Australia”.

This is where the important Tesic decision comes into play, and where the decision can be used to provide the basis for a challenge to a visa cancellation decision.

Inthe  Tesic case, the Statement of Reasons that the Minister signed included the following language:

“I took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding….”

Justice Collier concluded in Tesic that it was through the use of this language, elevating the description of a visa holder’s legal entitlements being merely a “privilege”, rather than a right, to a “principle” , that Justice Collier considered that the Minister had committed jurisdictional error.  It was Justice Collier’s view that by taking the approach that it is a principle of law, as opposed to simply a statement of policy, that a visa holder’s entitlements are no more than a “privilege”, the Minister’s decision-making process was “distorted”. By considering a visa holder’s entitlements to be a privilege, in Justice Collier’s view the Minister had taken into account an “irrelevant consideration”.

It should be noted that there has been a more recent decision of the Federal Court, Tupkovic v Minister for Immigration and Border Protection  (2017) FCA 73 (9 February 2017) where Justice Robertson characterized a statement by the Assistant Minister that he was: ”mindful of the “principle” that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia” to be no more than the Assistant Minister’s taking into account “a statement of policy”.  

To like effect to Tupkovic is the decision of Justice Perry in the case of Nigam v Minister for Immigration and Border Protection (2017) that was handed down on 15 February 2017.

Finding this a bit confusing? Well it does appear that the law on this issue is somewhat “unsettled” at this stage.

But, but, but: it should be kept in mind that Tesic may be very useful nonetheless!!! In cases where the Minister refers to the legal entitlements of a visa holder as amounting to no more than a privilege, and treats the characterization of the entitlement as a privilege as being a principle of law and not merely a statement of policy, there could very well be good grounds for challenging the cancellation!!!

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